Quote:
Originally Posted by manxminx
Yep, we'll finally be told by an independent expert if the Phorm software intercepts personal data or not. If it does, then that's the end of Phorm, as such interception (without the direct and explicit agreement of both parties) is clearly against the law.
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The interception is already clear - both the Home Office and FIPR statements make clear that the Phorm technology IS interception as defined in the RIPA. From what I take from those statements, as far as RIPA is concerned, the nature of the data is unimportant, the
fact that data is monitored at all is enough.
The only question really left is over how to define "explicit" consent. If you take the Home Office opinion, then it could be given in the Ts&Cs for the ISP contract. I'd guess that the only way BT could argue that their tests last year were legal would be to try and demonstrate that their existing T&C at the time allowed for this kind of interception. I'd be surprised if they did, but then it would be up to the lawyers to argue about that.
[EDIT: The Home Office advice is not the last word on the subject either. The FIPR opinion seems to argue that "explicit consent" is just that, and existing T&C would have to be updated. It also argues that the Home Office idea of "implied consent" by the owner of the web page is not enough to satisfy the requirements of the act, and consent cannot be assumed from that side. If you take this opinion, then there's almost nothing Phorm could do to be considered legal, short of contacting the owner of every single webpage on the internet and gaining their consent to intercept. Given the fact that at least some webmasters are already beginning to add Phorm non-consent notices to their websites, it seems almost impossible that Phorm/the ISP would
not break the law.]